On Tuesday, 16 March 2021, members of the National Assembly voted for the decision favouring a Parliamentary inquiry looking into the Public Protector’s fitness to hold office. Two-hundred-and-seventy-five voted in support of the inquiry, While 40 voted against, and one party, COPE, abstained. This vote follows the recommendations of an independent panel’s recommendations, which indicated that there is prima facie evidence of misconduct on the part of Advocate Busisiwe Mkhwebane.
Independent panel’s Report.
The independent panel was set up by the National Assembly Speaker Thandi Modise to assess if there is prima facie evidence indicating that Public Protector Busisiwe Mkhwebane committed misconduct, was incapacitated or was incompetent. The panel was chaired by a former Constitutional Court judge Bess Nkabinde. Other member were advocate Dumisa Ntsebeza and advocate Johan de Waal. The appointment of the panel came after a Democratic Alliance (DA) chief whip Natasha Mazzone raised a motion to have Mkhwebane removed from office in early in 2020, in terms of the rules of parliament which outline procedures to be followed in removing heads of constitutional Chapter 9 institutions, such as the public protector. Mazzone submitted that “The DA believes that it is of the utmost importance that Mkhwebane be removed as Public Protector and someone competent, credible and independent is appointed in this post to regain the public’s trust in this crucial Chapter 9 institution and to ensure that once again the interests of the vulnerable will be protected above the interests of the politically connected.”
The panel conducted the preliminary inquiry and handed their 119-page report to parliament on the second week of March 2021 after a 60-day extension of its mandate due to the wealth of evidence they had to peruse. Four main charges were raised by the panel, with other multiple sub-charges brought by Mazzone, together with a file of more than 9 000 pages. The preliminary inquiry turned to the most damning of adverse court rulings Mkhwebane has accumulated since succeeding Thuli Madonsela in October 2016. These include the Pretoria high court and the Constitutional Court findings on her 2017 Bankorp-Absa report, the court judgments relating to her report on the Vrede dairy farm scandal and the legal review of her Financial Sector Conduct Authority report.
The panel noted perceptions of bias raised by the courts and Mkhwebane’s failure to disclose that she met with then-president Jacob Zuma while arriving at her findings in the Bankorp matter. Her report called for a review of the South African Reserve Bank mandate when Zuma’s allies actively pursued this agenda as the ANC headed to its elective conference at Nasrec.
With regards to the Vrede matter, the panel highlighted Mkhwebane’s ignorance of the fact that the public protector has the power to order an investigation by the Special Investigating Unit or the auditor general as an indication of incompetence. The evidence adduced before the panel established that the public prosecutor grossly overreached and exceeded the bounds of her powers in terms of the Constitution and the Public Prosecutor by unconstitutionally trenching on parliament’s exclusive authority when she directed parliament to initiate a process to amend the Constitution. The panel also found “repeated errors of the same kind such as the incorrect interpretation of the law and other patent legal errors”.
It was also established that the public prosecutor altered the final report and gave the former Free State premier and the new ANC secretary-general Ace Magashule, who was implicated, the discretion to determine who the wrongdoers were. Moreover, Mkhwebane patently made a wrong finding on money laundering in the CR17 matter and doubted the bona fides of president Cyril Ramaphosa without any reason. The panel found it to be prima facie evidence of both incompetence and misconduct.
Mkhwebane’s answers to the above substantive issues failed to impress the panel. She responded to the preliminary inquiry with more than 1 160 pages of arguments. However, the panel concluded that “she does not come close to casting doubt on the findings in the three judgments analysed above”. She challenged the validity of the process on several grounds, including her right to incriminate herself regarding the pending perjury case against her – and questioned whether the panel was properly constituted. The panel dismissed these challenges and rejected another public prosecutor’s argument that the courts ruled against public officials regularly.
The Constitutionality of the Impeachment
The Constitution and the Rules of the National Assembly provide for procedures to remove an office-bearer in state institutions supporting constitutional democracy. Section 194 of the Constitution allows for the impeachment of Chapter Nine institution heads. The public protector, along with the South African Human Rights Commission, the Commission for Gender Equality, the office of the auditor general and the Independent Electoral Commission, among others, make up South Africa’s institutions that were established to safeguard democracy. These institutions are independent and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. However, they are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.
Section 194 of the Constitution stipulate that removal the head of institutions established by chapter nine may be removed from office only on the ground of misconduct, incapacity or incompetence; a finding to that effect by a committee of the National Assembly; and the adoption by the Assembly of a resolution calling for that person’s removal from office. Section 194 (2 ) of the Constitution requires a resolution of the National Assembly concerning the removal from office of the Public Protector or the Auditor-General to be adopted with a supporting vote of at least two-thirds of the members of the Assembly or a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly.
The Constitution goes further under Section 192 (3) and allow the president to suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person and must remove a person from office upon adoption by the Assembly of the resolution calling for that person’s removal.
The National Assembly votes
The required to vote needed a simple majority of 201 but passed with 275 after the ANC majority towed the party line. Given the ruling party’s dominance, it came down to whether ANC chief whip Pemmy Majodina could deliver an ANC vote unmarred by caucus rebellion. The rebellion was averted, and the ruling party came in at 168 votes, alongside the DA’s 83.
The EFF opposed the motion, with its MP Natasha Ntlangwini describing the process as explicitly targeting Mkhwebane to be the “prosecution of a black woman whose only crime was to demand accountability from the poster boy of white monopoly capital”. The most intriguing statement was made by Al Jama-ah MP Ganief Hendricks, who debated the matter should not proceed because ANC Secretary-General Ace Magashule had said so: “This is a street matter, and the SG has spoken. Al Jama-ah, with the two African Transformation Movement MPs and the 37 EFF MPs, made up the 40 votes against while the United Democratic Movement, which had argued against the inquiry, did not vote, nor did the National Freedom Party or African Independent Congress.
Democratic Alliance (DA) chief whip Natasha Mazzone said she would ask for an account of how the ruling party voted on a report that stemmed from a motion she filed more than a year ago. The DA has called on President Cyril Ramaphosa to suspend Mkhwebane pending the completion of the parliamentary process. The panel found prima facie evidence of incompetence and misconduct on the part of Mkwebane, evinced in a raft of court judgments overturning her findings, most of which appeared tailor-made in service of the so-called RET (radical economic transformation) faction within the ruling party.
The action of ANC to vote together with DA to pass impeachment inquiry against public protector indicated that the ruling political party expose how strong the so-called RET faction is in the ANC caucus. The RET faction, which coalesces around Magashule and opposes Ramaphosa, is believed to support Mkhwebane. The ANC Deputy Chief Whip Doris Dlakude in closing the political party declarations ahead of the vote, establishes that they are mindful as they are dealing with a matter of public interest, and as a public representative, they must at all times be seen processing matters of public interest.
The Speaker has begun the formal process for composing a committee to consider the report and eventually make recommendations to the National Assembly on whether Mkhwebane must be removed, The step which will require a two-thirds majority. It remains unclear when that committee will be established, who will be appointed to serve in the committee. As no timeframes are attached to the impeachment inquiry, and with parliament rising for a five-week recess to early May, it will be a waiting game.
This may well be a signal to the ruling party ANC, mainly as it was punished in the 2016 local government election with the loss of Tshwane, Nelson Mandela Bay Metro and Johannesburg, and had to form coalitions to retain control elsewhere.
Dr. Norah Msuya is a senior researcher and writes in her personal capacity.